May 8, 2009— -- In 2004, the Oregon Supreme Court unanimously struck down an effort to legalize same-sex marriage even though one of its justices -- Rives Kistler -- was openly gay.
Today, with his lesbian colleague Virginia Linder, there are two such justices in Oregon, in part because of the political efforts of the Gay and Lesbian Victory Fund, an advocacy group that seeks to put openly gay candidates in public office.
Now, they have set their eyes on the Supreme Court, where rumors surfaced this week that two highly qualified lesbians had made President Barack Obama's initial list to replace Justice David Souter.
With gay marriage now legal in five states, including heartland regions like Iowa and Maine, many activists feel that LGBT (lesbian, gay, bisexual, transgender) representation on the Court is within their reach.
"There have been 110 Supreme Court judges and 106 of them have been straight, white men," said Denis Dison, vice president of the Victory Fund. "So it's high time to look outside those institutions that produced Supreme Court justices in the past and find someone with different life experiences and different perspectives."
"No one should be barred because of their sexual orientation," he told ABCNews.com.
Obama has said his appointee would make the court more "diverse" and that he was looking for a justice with "empathy" -- something that conservatives fear might mean having a gay agenda.
"For us in Oregon, [a judge's sexual orientation has] been a real non-issue," said Margie Paris, dean of the University of Oregon Law School.
"We hope they are more sensitive to issues because of their life experiences, but at the same time, expect them not to have a single outlook on life -- that everything has to go my way."
But, said Paris, "It's a fair thing to ask anybody, regardless of their sexual orientation, What are your agendas? That is fair game when you are going to the Supreme Court."
Obama Open to Gays
Obama has already proven that he is open to gay judicial appointments.
In March, Obama named an open lesbian, Emily Hewitt, to be the chief judge of the U.S. Court of Federal Claims and another lesbian, Maria Demeo, to serve as a D.C. Superior Court judge.
According to the Victory Fund, the president has made 40 appointments of openly gay people in prominent positions, though none at the Cabinet level.
Even though the president set off a firestorm among gay groups when he chose evangelical Rick Warren to lead the prayer at his inauguration, gay groups say he has come a long way in the first 100 days.
"Obama's got about 7,000 appointments to make, and this is just the beginning," Dison told ABCNews.com. "For a long time, gay people could not be open about their lives and serve honesty."
Although Obama was silent as the Iowa Supreme Court overturned the state's ban on gay marriage, he has said he is a "fierce advocate" for gay rights, urging Congress to pass a hate crimes bill and repeal the military's "Don't ask, don't tell" rule.
"Judging against his predecessors, Obama gets really high marks," said Dison. "He is incredibly inclusive, open and has made sure that LGBT people are represented in his administration."
"People are getting a little tired of hearing he is personally opposed to gay marriage and thinks it's a state's issue," he said. "The rapid change we are seeing right now gives hope for his leadership."
But some conservative groups charge "identity politics."
"We have no problem [with a justice's sexual orientation] as long as they are not empathetic to any class," said Bruce Hausknecht, judicial analyst for Focus on the Family Action.
But, so far, those early judicial appointments "have all been hard left," he told ABCNews.com.
Peter Sprigg, senior fellow for policy studies at the pro-life Family Research Council, is also dismayed and worried that "empathy" in appointments means rewriting the Constitution.
Sprigg is also suspicious of Obama's opposition to same-sex marriage.
Obama Views Illogical
"His stance is logically incoherent," he told ABCNews.com. "He claims he does not support it, but he actively opposes it in every possible method of preserving the union of marriage."
"I think he would rather not deal with this issue at this point in his presidency," he said. 'My personal opinion is that he supports [same-sex marriage] but doesn't think it's politically wise."
But Jon Davidson, legal director for the LGBT advocacy group LAMBDA Legal, is hopeful that Obama's views on gay marriage will eventually "evolve" and that he will embrace the gay movement as a civil rights issue.
Considering two lesbians for the highest court "is not exactly like breaking the ceiling," he told ABCNews.com. "It's more like entering the gate."
"I'm kind of impatient," Davidson said. "But at the same time, he has a lot on his plate. He has said it's important to be able to walk and chew gum at the same time, and we expect our politicians to be able to multitask. We would like to see more, but so far he's moving in the right direction."
"The fact that being gay or lesbian is no longer a disqualifying factor for being considered to being appointed to the highest court is dramatic progress."